Tenth Circuit Narrows Collateral-Order Review of Litigation-Privilege Denials
Comprehensive Commentary on Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., 24-1061 (10th Cir. July 8, 2025)

1. Introduction

In Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., the United States Court of Appeals for the Tenth Circuit dismissed an interlocutory appeal for lack of jurisdiction, reinforcing two key doctrines—law of the case and the narrow scope of the collateral-order doctrine—when a district court’s denial of an absolute litigation-immunity (litigation-privilege) defense turns on unresolved factual questions.

Parties. Vivos Therapeutics (“Vivos”) manufactures oral-appliance products; Ortho-Tain, Inc. (“Ortho-Tain”) is a competing dental-device company.

Background conflict. Vivos alleged that Ortho-Tain’s CEO (Leslie Stevens) and attorney (Nathan Neff) sent letters to Benco Dental accusing Vivos of misrepresenting Ortho-Tain products. Vivos sued in Colorado federal court for false advertising, consumer-protection violations, defamation, tortious interference, and declaratory relief. Ortho-Tain counter-sued in Illinois.

Procedural posture. Ortho-Tain moved to dismiss, arguing the Colorado litigation privilege immunized its statements because they were made in anticipation of the Illinois suit. The district court denied the motion; Ortho-Tain appealed. In a first appeal (“Vivos I” 2022), the Tenth Circuit held:

• No immediate appeal on Neff’s statements because factual disputes precluded a purely legal resolution.
• Non-attorneys can invoke the privilege, remanding for the district court to examine all spring-2020 communications collectively to decide the “good-faith contemplation of litigation” element.

On remand, the district court again declined to dismiss, finding the pleadings inadequate to determine good faith without fact development. Ortho-Tain launched the present (second) interlocutory appeal, accompanied by requests to review other non-final rulings pendent to the immunity issue.

2. Summary of the Judgment

The Tenth Circuit—Judges Hartz (author), Tymkovich, and Eid—dismissed the appeal:

1. Under law of the case, Vivos I already held that when litigation-privilege immunity hinges on disputed facts (here, the defendants’ good-faith contemplation of future litigation), the collateral-order doctrine does not supply appellate jurisdiction.
2. Because the court lacked jurisdiction over the immunity issue, it could not exercise pendent appellate jurisdiction over the remaining rulings.

Accordingly, the appeal was dismissed in its entirety, and the matter returns to the district court for further proceedings—likely limited discovery targeted at the privilege question before merits discovery proceeds.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

(a) Primary Prior Appeal: Vivos I (2022)

• Set the “law of the case” that factual uncertainty about good-faith contemplation bars collateral-order review.
• Clarified that non-attorneys may claim Colorado’s litigation privilege when acting in furtherance of contemplated litigation.

(b) Collateral-Order Framework

• Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) – Origin of the collateral-order doctrine.
• Mitchell v. Forsyth, 472 U.S. 511 (1985) – Immediate appeal allowed from denial of qualified immunity when the issue is purely legal.
• Will v. Hallock, 546 U.S. 345 (2006); Digital Equipment Corp. v. Desktop Direct, 511 U.S. 863 (1994); Mohawk Industries v. Carpenter, 558 U.S. 100 (2009) – Emphasized the doctrine’s “stringent” limits and preference for rulemaking over judge-made enlargement.
• Robinson v. Volkswagenwerk AG, 940 F.2d 1369 (10th Cir. 1991) – Earlier Tenth Circuit precedent recognizing collateral-order appeals from litigation-privilege denials; the panel expressly questions Robinson’s vitality after Will, but does not overrule it because doing so is unnecessary.

(c) Qualified-Immunity Comparator Cases

• Weise v. Casper, 507 F.3d 1260 (10th Cir. 2007) – Distinguished immediately appealable “neat abstract issues of law” from fact-dependent qualified-immunity denials.
• Ashcroft v. Iqbal, 556 U.S. 662 (2009) – Clarified appellate review of complaint sufficiency; the panel explains why Iqbal does not disturb Vivos I under the law-of-the-case rubric.

(d) Colorado Litigation-Privilege Substantive Authorities

• Killmer, Lane & Newman, LLP v. BKP, Inc., 535 P.3d 91 (Colo. 2023) – Adopted Restatement § 586 for litigation privilege and insisted on good-faith contemplation for pre-litigation statements.
• Coomer v. Donald J. Trump for President, Inc., 552 P.3d 562 (Colo. App. 2024) – Synthesizes privilege elements: relation, furtherance, and good-faith contemplation.

3.2 Court’s Legal Reasoning

1. Law-of-the-Case Rigidity. Because none of the three exceptions (substantially different evidence, contrary controlling authority, or manifest injustice) applied, the panel was bound by Vivos I’s jurisdictional holding.
2. Factual vs. Legal Distinction. The district court face a live factual issue—whether the spring-2020 letters were made in good-faith contemplation of the Illinois suit. Under Weise and Johnson v. Jones, an interlocutory appeal lies only when the immunity question is purely legal.
3. Collateral-Order Doctrine Application. The panel reiterates that immediate review is reserved for orders that are (a) conclusive, (b) separate from merits, and (c) effectively unreviewable later and jeopardize a “substantial public interest.” A private defendant’s desire to avoid trial does not rise to that “high order.”
4. Pendent Jurisdiction Denied. Without an appealable anchor order, there can be no pendent jurisdiction over the other interlocutory challenges.

3.3 Likely Impact of the Judgment

• Narrower Use of Robinson. By casting doubt on Robinson’s collateral-order holding, the panel signals that future litigants should not assume denials of litigation privilege are immediately appealable unless the issue is indisputably legal.
• Practical Litigation Strategy Shift. Defendants may need to develop an evidentiary record in the district court—via limited privilege-focused discovery—before seeking appellate review, thereby delaying strategic interlocutory appeals.
• Strengthening of Colorado’s Good-Faith Requirement. The opinion implicitly affirms Colorado courts’ insistence on genuine, non-sham anticipation of litigation before the privilege attaches, deterring weaponization of defamatory pre-suit letters.
• Guidance on Law-of-the-Case Doctrine. The decision exemplifies the doctrine’s force even when subsequent Supreme Court cases arguably shift the landscape, unless an explicit conflict exists.

4. Complex Concepts Simplified

Collateral-Order Doctrine

A narrow exception to the “final-judgment” rule allowing immediate appeal of certain non-final orders. To qualify, the order must (1) conclusively resolve the issue, (2) involve an important, separate legal question, and (3) be effectively unreviewable after final judgment and implicate a high-level public interest.

Litigation Privilege (a/k/a Absolute Litigation Immunity)

A doctrine protecting participants in litigation from liability for statements made in or in anticipation of judicial proceedings, provided:

1. Statements relate to the subject matter of the litigation.
2. They are made to further the objectives of that litigation.
3. (For pre-litigation statements) the proceeding was genuinely contemplated in good faith.

Law-of-the-Case Doctrine

Once an appellate court decides a legal issue, that ruling generally binds the trial court and subsequent appeals in the same case, absent (1) new evidence, (2) supervening contrary authority, or (3) clear error causing injustice.

Pendent Appellate Jurisdiction

A discretionary mechanism allowing appellate courts to review otherwise non-appealable orders only when they are inextricably intertwined with, or their review is necessary to resolve, an order that is properly before the court. No “anchor,” no pendent review.

5. Conclusion

Vivos Therapeutics v. Ortho-Tain affirms that when a district court’s denial of litigation privilege turns on factual disputes—especially the speaker’s good-faith anticipation of litigation—immediate appellate review is unavailable under the collateral-order doctrine. The decision underscores the Tenth Circuit’s fidelity to the final-judgment rule, cautions against over-reliance on earlier collateral-order cases like Robinson, and fortifies Colorado’s robust “good-faith” check on the litigation privilege. Litigants invoking absolute immunity must be prepared to develop a factual record at the trial level; otherwise, they will face the ordinary course of litigation before seeking appellate relief.